The IRS is under obligation only to mail notices to the taxpayer’s last known address in order to start the clock running on the time period to take specific actions. In the case of Gregory v. Commissioner, 152 TC No. 7, the Tax Court ruled that neither Form 2848, Power of Attorney and Declaration of Representative, nor Form 4868, Application for Automatic Extension of Time to File U.S. Individual Income Tax Return, served to change a taxpayer’s last known address.

The taxpayer in the case of ATL & Sons Holding Inc. v. Commissioner, 152 TC No. 8, sought to have the Tax Court order the IRS to stop pursuing a failure to file penalty imposed on the taxpayer’s S corporation. The taxpayer argued that there had been no harm to the government since the shareholders had timely filed their personal returns and reported the income. While they may not have applied for an extension of time to file the S corporation return, they had filed for such an extension on their personal return and filed within the time period for such filing.

The Tax Court determined that a taxpayer who elects to exclude a lump sum payment of social security from gross income under IRC §86(e) nevertheless must include that amount in the taxpayer’s modified adjusted gross income (MAGI) for computing repayment of the advance premium tax credit under IRC §36B. The case of Johnson v. Commissioner, 152 TC No. 6, involved a taxpayer who had received just such a lump sum payment of social security in a year in which he had also received advanced premium tax credits to reduce his health insurance premiums.

IRC §36B provides for advanced payment of premium tax credits that are available to qualified individual purchasing insurance on health insurance exchanges. The advance credit is to be reconciled at the end of the year to the amount of credit the taxpayer qualifies for based on the taxpayer’s §36B MAGI. That reconciliation takes place on Form 8962, Premium Tax Credit, which is filed with the taxpayer’s individual income tax return.

If a taxpayer is electing making the safe harbor election for a real estate enterprise under Notice 2019-07 and electronically filing his/her return, a signed copy of the election must be submitted as a PDF attachment to e-filed return reports Tax Notes Today. In an article in the March 11, 2019 edition of Tax Notes Today, Eric Yauch reports that IRS Office of Chief Counsel Attorney Robert Alinsky confirmed that requirement while speaking at the Federal Bar Association Conference in Washington.[1]

Notice 2019-07, issued concurrently with the final regulations under IRC §199A, provided a draft revenue procedure that allowed a safe harbor election to treat a real estate enterprise as a trade or business which would qualify for the deduction of a qualified business income amount under IRC §199A. The Notice provided that taxpayers may rely on the proposed revenue procedure until the final revenue procedure is issued by the IRS.

Certain partnerships complained to the IRS that they will not be able to provide that information with this year’s K-1s, at least not without delaying the issuance of K-1s to shareholders significantly. In response to these complaints, the IRS in Notice 2019-20 has provided a temporary reprieve to such partnerships.

The IRS has announced it no longer intends to issue amended regulations under IRC §401(a)(9) in Notice 2019-18. The IRS has previously announced in Notice 2015-49 that it had intended to revise the minimum distribution regulations to address the practice of offering a temporary lump sum payment option to beneficiaries of a defined benefit pension plan who were currently receiving annuity payments.

The Treasury Department released a policy statement (Policy Statement on the Tax Regulatory Process) that indicated the agency will rely less on temporary regulations and subregulatory guidance (such as Notices) than it has in the past.

The statement begins by noting the IRS will continue to use the notice-and-comment process for both interpretative and legislative regulations even though the Administrative Procedures Act (APA) exempts interpretive regulations from that requirement. The policy explains:

This process allows the public to participate before any final rule becomes effective and ensures that all views are adequately considered. It also enables the public to apprise the government of relevant information that the government may not possess or to alert the government to consequences that it may not foresee.

The Tax Court took a look at what it takes to create a casualty loss in the case of Mancini v. Commissioner, T.C. Memo. 2019-16. In this case the taxpayer argues that his gambling losses were a casualty loss since a drug he had been prescribed caused him to compulsively gamble. While the court agreed he had proven the causal link between the drug and his gambling, it also found that his loss did not meet the requirements under the IRC to be a treated as a casualty loss.

The Court of Appeals for the District of Columbia reversed a prior lower court ruling that barred the IRS from charging a fee to issue or renew Preparer Tax Identification Numbers (PTINs) in the case of Montrois, et al v. United States, Case No. 17-5204, CA DC.

In June of 2017 the U.S. District Court for the District of Columbia ruled in this case that the IRS, following a ruling in the case of Loving v. IRS, 742 F.3d 1013 (D.C. Cir. 2014), lacked the authority to impose a fee on tax preparers to obtain and renew PTINs. The original case argued that the fee violated the provisions of the Independent Offices Appropriations Act that the IRS used to justify the fee.

The Tenth Circuit denied a taxpayer’s attempt to force the IRS to bear the burden of proof that an LLC operating as an S corporation was trafficking in a controlled substance that would lead to a denial of most business deductions per IRC §280E in the case of Feinberg, et at v. Commissioner, Case No. 18-9005, CA10. The taxpayer argued that, despite the fact that the burden of proof generally falls on the taxpayer to prove the right to a deduction, to do so in this case would involve a violation of the taxpayers’ Fifth Amendment privilege.

This was the second trip up to the Tenth Circuit for the taxpayers in this exam. While their first trip was ultimately successful in the eventual result, if not 100% in the decision, this second trip was not fruitful for the clients.

This week a number of questions arose in different online tax discussion forums regarding the potential taxability of a state income tax refund for taxpayers where the taxpayers had their state tax deductions limited by the $10,000 limit on such deductions under IRC §164(b)(6). The question was whether a portion of the refund equal to the refund amounts times the ratio of income taxes to total state and local taxes subject to the $10,000 limit will be considered taxable in 2019.

Some tax software have been providing reports of potentially taxable refunds based on the ratio calculation. The rumors suggest that at least some sources at the IRS have indicated that this prorated refund calculation is what should be reported in 2019. But is such a calculation correct?

The Ninth Circuit Court of Appeals ruled in the case of J.B.; P.B. v. United States of America, No. 16-15999, CA9 that the IRS failed to provide the taxpayers with reasonable notice in advance of the agency’s intent to contact third parties as required by §7602.

Individual farmers and fishermen are subject to special rules under IRC §6654(i)(1)(A) & (B) that exempt them from an underpayment penalty under §6654 if they make a single estimated tax payment in the amount due by January 15 of the year following the year the taxes are due. However, under IRC §6654(i)(1)(D) these individuals get a second chance if they miss that January 15 date for their one estimate. They are still not subject to an underpayment penalty if they file their return by March 1 of the year following the year in question and pay the resulting tax.

The case of Walquist v. Commissioner, 152 TC No. 3, looks at first glance to be just a run of the mill tax protestor case, as the Court noted the taxpayer, in response to an automated IRS notice regarding unreported income, filed a Tax Court petition that contained the following:

On November 27, 2017, petitioners submitted to this Court a purported petition that consisted of a copy of the notice of deficiency, on each page of which they had written “REFUSAL FOR CAUSE.” Petitioners appended various documents containing assertions commonly advanced by tax protesters, including assertions that U.S. currency is not “lawful money” and that they “have no obligations or liability to even file a return” because they “intend to only handle legal money.” Petitioners also advanced the more novel (but equally frivolous) argument that this Court should garnish the wages of the Secretary of the Treasury for an amount equal to petitioners' outstanding tax liability.

This article is based on my response to a question raised on an online forum. The person asking the question recognized the issue, but because I’ve encountered some advisers who have come to believe the safe harbor is “the” test for rentals I wanted to clarify matters a bit. Hopefully this helps.

Facts: An LLC operates a shopping center with many tenants. While the leases are all triple net leases, the manager spends over 250 hours a year dealing with items related to the center, including collecting rents, paying the bills, finding new tenants, dealing with vendors and keeping the records of the operation. The operation doesn’t qualify for the safe harbor of Notice 2017-07 due to being a set of triple net leases. Does that mean it cannot be a trade or business for Section 199A purposes?

The U.S. Supreme Court found to be illegal a West Virginia state tax break that provided an exemption from state tax for retired state law enforcement employees but did not offer the same benefit to retired federal law enforcement employees. The Court unanimously ruled in the case of Dawson v. Steager, Case No. 17-419 that the West Virginia court was in error finding that the law was acceptable since it applied only to a narrow class of retirees and did not intend to discriminate against federal marshals.

In Politico’s Morning Taxon February 21, 2019 a potential loophole regarding property taxes paid by owners of units in housing cooperatives is discussed. As the article notes:

So why might living in a co-op give taxpayers a way around the SALT cap? In short, co-op owners don’t pay a property tax, or actually buy a property as it’s usually understood, as Pro Tax’s Brian Faler reported. That matters because lawmakers bypassed the section of the tax code that does allow co-op owners to deduct their version of property taxes — essentially a fee paid to the corporation that owns the property, which then pays the taxes — when drafting the TCJA.

The article does caution it’s “not apparent whether co-op owners can assume they’re in the clear, at least for now, on property taxes.” But what exactly is the issue?

The IRS indicated that the existence of expanded delivery options for meals in an area may eliminate the ability of an employer to claim that meals are provided to employees for the convenience of the employer in TAM 201903017. While the TAM deals with a number of issues in its 50 pages, the consideration of the impact of delivery services such as UberEats is something new in this area.

Although the case arguably has been rendered effectively moot by the Tax Cuts and Jobs Act, the IRS did announce in Action on Decision AOD 2019-01 that it acquiesced in result only in the case of Jacobs v. Commissioner, 148 T.C. No. 24 (2017).

The Jacobs case, which we detailed when the case was originally released (Full Deduction Allowed to Hockey Team for Meals Provided to Players at Away Games, 6/20/17), held that a profession hockey team that provided meals for its players in areas leased from local hotels for away games qualified as meals provided at an employer’s eating facility under §132(e). Based on the law in effect that time, such employer meals provided at an employer’s eating facility qualified for a 100% deduction for the employer and no inclusion in income for the employee.